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Supreme Court rules on alibi, immunity

After acknowledging today that it had pretty much made a mess of the alibi defense in earlier cases, the Supreme Court established clear rules for when judges must instruct on it in Cooper v. Commonwealth.

The issue arose from the trial of Jerry Lynn Cooper, who contended that he was in Clifton Force working on a construction project at the same time an informant testified that he was delivering cocaine to her in Covington.

The trial judge refused to give an alibi instruction after concluding that the issue was covered in instructions on presumption of innocence, reasonable doubt and the elements of the offense.

That was probably in line with some of the courts earlier opinions, especially one that characterized alibi as a matter of rebuttal rather than a true defense, Senior Justice Harry L. Carrico wrote for a unanimous court.

“We now hold to the contrary . . . ,” Carrico said. “Hence, we will treat alibi as a defense in the accurate meaning of the term.” The earlier case also said an alibi defense should be given no special consideration, but the holding is inconsistent with court rules that make it one of only two defenses that must be disclosed prior to trial, Carrico said.

As a result, an instruction on alibi, which had been left to the discretion of the trial court, now must be given when a defendant contends he was elsewhere during the entire period when a crime could have been committed.

The court also ruled unanimously that a defendant is entitled to immunity under Virginia Code Sec. 18.2-262 only when he is compelled to testify.

Simon Vaughn Murphy had argued that he was entitled to immunity to all charges against him because of his testimony at a preliminary hearing against a co-defendant after he had reached a plea agreement with the prosecution.

Not so, Justice Barbara Milano Keenan wrote in Murphy v. Commonwealth. The testimony that the plea agreement by Murphy was voluntary and therefore inconsistent with what Keenan said is the unambiguous language of the statute that the testimony must be compelled before a defendant can get immunity.

By Alan Cooper

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